Nomura Asset Acceptance Corp. Alternative Loan Trust v Nomura Credit & Capital, Inc.

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Nomura Asset Acceptance Corp. Alternative Loan Trust v Nomura Credit & Capital, Inc. 2018 NY Slip Op 30927(U) May 14, 2018 Supreme Court, New York County Docket Number: 652619/2012 Judge: Marcy Friedman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 05/14/2018 04:34 PM 1] NYSCEF DOC. NO. 311 St~J~JI~S INDEX NO. 652619/2012 RECEIVED NYSCEF: 05/14/2018 2006"'S3, by- rIS.E~(: ~3/\NJ( tJSi\~ N/\..-fI()J\L~\L..l~!-.SS()(~]j\.l'J{)]\-~: iI1 its capacity as 'I'rt1stee rn1rst1ant to a ~)<)olh1g and Ser\/_h:.in,g i\green-i~;r1t, clate<.i as of· .J ul~y 1., 2006> Defendant, ..... ~~~~~~~~~-.~----- ....... ···-------- .......... ~~~~~~~~-.-.-.-.-.-. ________ ........... ------ ............ ~~~~-.-.-.-.-. ............. . NOMURA CREDIT & CAPITAL, INC, Third-Party Plaint(.fJ.; - against - \:VELLS FARGO BANK, N.A. and OC\VEN LOAN SERVICING, LLC, Third-Party Defemiants. In this action involving residential mortgam>backed securities (Rlv1BS), third-part.y defendants Wells Fargo Bank, N.A. (Wells Fargo) and Ocwen Loan Servicing, LLC (Ocwen) (together with Wells Fargo, the Servicers) separately move, pursuant to CPLR 3211 (a) (1 ), (5), and (7), to dismiss the third-party complaint The third-party complaint pleads a breach of contract claim against the Servicers based on the Servicen/ alleged failures to notif)' third-party plaintiff Nomura Credit & Capital, Inc. (Nomura) upon their discoveries of breaches of representations and warranties regarding the mmigage loans, and on their alleged failures to cornply \Vith their servicing or supervisory servicing obligations (the second cause of action). 2 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 04:34 PM 2] NYSCEF DOC. NO. 311 INDEX NO. 652619/2012 RECEIVED NYSCEF: 05/14/2018 The third-party complaint also pleads a cause of action for indemnification against both Servicers (the third cause of action). Except as noted below, the parties' arguments in support of and in opposition to the Servicers' motions are substantially similar to the arguments considered and addressed by the court in its recent deterrnlnations of the Servicers' motions to dismiss the third-party complaints in tw'o other actions involving the same parties. (See genernllv Decision & Order, NQIDJJI<;Lt'.\1?.§~1 A-.C.f~P1<JJJQy__(;Qt;2:.J\)J~g~;,iti_y~__ l;QJJILirn:?t~.~ri~.§ ..2..QQ9::~H..Y.N2mYm..Crn.4~.t.-~__ (:_E!pft~tLJn_f"- [Sup Ct, NY County, May 14, 2018, No, 653390/2012] [f\{Qffi1Jnl.f~.Q.Q_6::~::DJ; Decision & Order, NRrn~rn_-1:~9PJ&.Es:mi!Y.. L9.~n, __lnc;_._,__~s.:ri~§..fQQ2.:f.M?. ..Y_N9mY.rn...CJedit &:..C4piJf.lI_, __ X11~:'. [Sup Ct, NY County, May 14, 2018, No, 653 783/20 i 2] fb.m1mr_~J2Q~~§::f.MJJ] .) The claims and governing agreements in this action and in Nmrmrn.Q_(}_Q_<2::~4J and N2mwJtf2_()_{)_f,i::EM~} are also substantially similar. 1n moving to dismiss the third-party complaint in this action, \Veils Fargo argues principally that Nomura's breach of contract claim is barred by Nomura's own breaches of representations and warranties; that Nomura fails to adequately plead that \Vdls Fargo discovered detective loans or breached any of its supervisory servicing obligations; that some or aU ofNomura's claims are time baITed; that Nmnura fails to state a clairn against \Vdls Fargo in its capacity as Custodian; and that Nomura has no right to indemnification from \Vells Fargo under the facts as alleged. In its separate motion to dismiss, Ocwen argues principally that irnpleader was improper; that Nomura fails to plead its O'Nn performance under the PSA because its claim is premised on breaches ofrepresentations and warranties; that Nomura fails to adequately plead that Ocwen discovered breaches or that it breached its servicing duties; that 2 3 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 04:34 PM 3] NYSCEF DOC. NO. 311 INDEX NO. 652619/2012 RECEIVED NYSCEF: 05/14/2018 Nomura lacks standing to enforce Oc1.ven's servicing obligations; that Nomura's alleged damages constitute impermissiblyspeculative consequential damages; that Nomura has no right to indemnification from Ocwen under the facts as alleged; that some or all ofNomura's claims are time barred; and that Nomura fails to plead that Ocwen is liable as the successor to non-party GMAC Mortgage Corporation. These arguments by the Servicers are resolved in accordance with N£mrnrnJ2DD.6.::S4\ frn· the reasons stated and based on the authorities cited in that decision. Wells Fargo also argues that Nomura has no "right" to bring a breach of contract claim 7 arising out of Weils Fargo's failure to enforce Ocwen's servicing obligations because Wells Fargo's supervisory obligations are owed only to the Trustee and certificateholders. (Wells Fargo Memo, In Supp., at 15.) This argument is resolved in accordance with Nwm~rnL'.f.QQ.2:: EMZ.}, for the reasons stated and based on the authorities cited in that decision. Nomura has agreed to withdraw the ponion of its breach of comract claim against Wells Fargo in its capacity as Custodian. (Nomura Memo. In Opp. To Wells Fargo, at 2 n 4.) Jt is accordingly hereby ORDERED that the motion of Ocwen Loan Servicing, LLC (Ocwen) to dismiss the third~party cornplaint is granted solely to the extent of dismissing tbe third cause of action for indemnification as against Oc\ven, and the second cause of action for breach of contract to the extent that it purports to plead a claim for successor liability against Ocwen based on the acts of GMAC Mongage Corporation; and it is further ORDERED that the motion of WeUs Fargo Bank, N.A. (Wells Fargo) to disrniss the third-party complaint is granted solely to the extent of dismissing the third cause of action for indemnification as against Wells Fargo, and the second cause of action for breach of contract to 3 4 of 5 [*FILED: NEW YORK COUNTY CLERK 05/14/2018 04:34 PM 4] NYSCEF DOC. NO. 311 INDEX NO. 652619/2012 RECEIVED NYSCEF: 05/14/2018 the extent that it pleads that ·wells Fargo breached its duties as Custodian. This constitutes the decision and order of the court. Dated: New York, Ne>vv York May 14, 2018 4 5 of 5

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